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Zevah Nolan v. Village of Dolton

April 21, 2011

ZEVAH NOLAN, PLAINTIFF,
v.
VILLAGE OF DOLTON, A MUNICIPAL CORPORATION AND BODY POLITIC, AND SGT. A. BANKHEAD, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Zevah Nolan filed suit against the Village of Dolton and Sgt. A. Bankhead (collectively, "defendants"), alleging First Amendment retaliation under 42 U.S.C. § 1983 and malicious prosecution under Illinois state law.*fn1 Defendants filed a motion to dismiss all claims against them. For the reasons set forth below, defendants' motion [#11] is denied.

BACKGROUND*fn2

In June 2010, Nolan went to the Dolton Police Department to receive her child following the child's visit with her father. Nolan noticed that the child's father did not have the child in a car seat as required by law. She brought this to Bankhead's attention and also informed Bankhead that the father's driver's license was suspended and that he was driving without car insurance. Bankhead refused to take any action. Nolan then complained to the Dolton Police Department about Bankhead's failure to take action, and the Dolton Police Department conducted an investigation.*fn3

On September 24, 2010, Nolan was parked at a gas station in Dolton when Bankhead stopped his squad car next to Nolan's car and approached. He addressed her in a loud, angry voice, saying, "You filed a case against me. Nothing is going to happen to me." "We know who you are and where you live." "What you did was stupid. You're stupid." "You think I'm playing with you?" Compl. ¶ 10. Bankhead issued two citations to Nolan. One was for failure to wear a seat belt. On this charge, after a bench trial held November 4, 2010, Nolan was found not guilty. The other was for operating her vehicle without insurance, for which she received six months of supervision.*fn4

Nolan thereafter filed her complaint in this court, alleging two counts against Bankhead and one count against the Village of Dolton. Nolan claims that Bankhead's statements to her were harassment and made in retaliation for her complaint to the Dolton Police Department. She also claims that Bankhead's charge of failure to wear a seat belt was malicious prosecution. Finally, Nolan claims that the Village of Dolton is liable for any damages pursuant to Illinois' municipal indemnity statute, 745 Ill. Comp. Stat. 10/9-102.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). For the purposes of a Rule 12(b)(6) motion, the court takes as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences in the plaintiff's favor. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977-78 (7th Cir. 1999). Factual allegations must, however, be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-236 (3d ed. 2004)); see also Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1953, 173 L. Ed. 2d 868 (2009) ("Twombly expounded the pleading standard for all civil actions."). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

DISCUSSION

I. First Amendment Retaliation Claim (Count I)

In order to present a valid claim for First Amendment retaliation, Nolan must allege that

(1) she engaged in an activity protected by the First Amendment; (2) she suffered an adverse act that would likely deter First Amendment activity in the future; and (3) her activity was the butfor cause of the adverse act. See, e.g., Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010);

Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009) (citing Gross v. FBL Fin. Servs., Inc., --- U.S. ----, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009)) (requiring plaintiffs to demonstrate butfor causation). ...


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